Monday, July 02, 2012

Did Roberts Wipe His Butt With The Constitution?

In his majority opinion, Justice
Roberts failed to even mention the bill’s legislative history. He
ignored the Origination Clause problem presented by Senate Majority
Leader Reid's “shell bill” and its constitutional circumvention.
Presumably, he relied upon the “enrolled bill rule” established in the
Court’s 1892 Marshall Fields Co. v. Clark decision as an excuse
to overlook Senator Reid’s fraudulent trickery. Under the “enrolled
bill rule,” the Court essentially says if Congress tells it a bill
originated in a specific House, it simply accepts that statement of
enrollment as the “proper origination of the bill.”

Roberts may have also relied upon a
very recent and highly suspect legislative precedent that some claim
established the legitimacy of this “shell bill” Origination Clause scam.
It was the same tactic used when the Senate passed the infamous TARP
Bailout Bill in October, 2008.

Roberts did, however, argue
emphatically in the grotesquely twisted logic of his majority opinion
that the penalty to be paid by individuals who failed to purchase health
insurance was a tax. He made this dubious argument despite the facts
that the bill itself fails to mention the word “tax,” and President
Obama and the Democratic members of Congress who passed the bill in 2010
vigorously denied on innumerable occasions prior to its passage that it
was a tax.

In effect, Justice Roberts became the
second con artist in a two-man bait and switch scam. Had President Obama
called the individual mandate a “tax” prior to its passage, it simply
would have not had the political steam to pass. After all, it only
became law by the barest of margins using the most deceptive of
techniques. Justice Roberts effectively announced that the federal
government had been kidding all along. Yes, of course, he said, the
individual mandate was a tax.

Having accepted the “shell bill” scam,
Roberts was now forced to play an Origination Clause “shell game.”
Rather than explain why the Senate's ruse did not circumvent the
Framers' clear intent in the Origination Clause, Roberts ignored the
question entirely. But as James Saturno of the Congressional Research
Service wrote in “The Origination Clause of the U.S. Constitution: Interpretation and Enforcement,” there is good recent judicial precedent to invalidate this particular legislative chicanery:

The application of the enrolled bill
rule to insulate cases arising from the Origination Clause, however,
does not appear to be absolute. In [United States v. Munoz-Flores
(1990)], ... the Court held that while a judicial finding that Congress
had passed an unconstitutional law might in some sense be said to entail
"a lack of respect" for Congress’ judgment, that this was not
sufficient to make a question justiciable, on the basis of either the
enrolled bill rule or as a political question. Justice Marshall, writing
the majority opinion of the Court, stated that:

"If it were every [italic in original]
judicial resolution of a constitutional challenge to a congressional
enactment would be impressible…Congressional consideration of
constitutional questions does not foreclose subsequent judicial
scrutiny…Although the House certainly can refuse to pass a bill because
it violates the Origination Clause, that ability does not absolve the
Court of its responsibility to consider constitutional challenges to
congressional enactments…A law passed in violation of the Origination
Clause would thus be no more immune from judicial scrutiny because it
was passed by both Houses and signed by the President than would a law
passed in violation of the First Amendment."

About Me

I was born in Tombstone, Arizona, but moved to California in 1959 when labor strikes at the copper mines devastated the Arizona economy. I've been moving north ever since. Pullman is as far north as I care to live and I'm looking toward reversing the drift.